Ahlawat & AssociatesAdvocates

Right to Privacy-A Fundamental Right

Right to Privacy-A Fundamental Right

In a landmark judgement, the 9 judge bench of the Hon’ble Supreme Court of India on 24th August, 2017 held that ‘Right to Privacy’ is a guaranteed fundamental right.

Why was the 9 judge bench formed?

This bench of the Hon’ble Supreme Court was formed after a batch of petitions were filed questioning the constitutional validity of the Aadhaar scheme. Under the Aadhaar scheme, the state was collecting biometric data of the citizens which was claimed to be a violation of the right to privacy of the citizens, therefore the question that was to be answered was whether right to privacy of the citizens was being violated or not?

In order to answer this question, this 9 judge bench was formed whose primary objective was to check the correctness of the judgements delivered by the Hon’ble Supreme Court in M.P Sharma vs. Satish Chandra, District Magistrate, Delhi (AIR 1954 SC 300) and Kharak Singh vs. State of U.P & Ors. (AIR 1963 SC 1295) which held that right to privacy was not a guaranteed fundamental right under the Indian Constitution.

The highlights of the judgement are as follows:

Judgement of M.P. Sharma vs. Satish Chandra, District Magistrate, Delhi was overruled. It was held in M.P. Sharma that a provision similar to the 4th amendment of the United States Constitution (provision under which right to privacy of the citizens of US is protected) was not there in the Indian Constitution and right to privacy could not be read under Article 20(3) of the Indian Constitution.

The Kharak Singh judgement was accepted to the extent that ‘life’ under Article 21 of the Indian Constitution does not mean merely the right to a person’s animal existence and the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home and or an intrusion into his personal security. It was overruled to the extent that right to privacy was not protected under the Indian Constitution.

Right to life and personal liberty is an inalienable right and are inseparable from dignified human existence. The dignity of an individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.

Life and personal liberty are not creations of the Constitution. There are the parts of the inner sphere of a person and are inseparable. It is just recognized by the constitution.

Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.

The privacy of home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III.

Right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights.

Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded.

Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.

This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy.